No. 02-06-00244-CV THE COURT APPEALS
FOR THE SECOND JUDICIAL DISTRICT
FORT WORTH, TEXAS
GAMAL ABDEL-HAFIZ,
Appellant,
ABC, INC., ABC NEWS, INC., ABC NEWS HOLDING COMPANY, INC., CHARLES
GIBSON, BRIAN ROSS, ROBERT WRIGHT AND JOHN VINCENT,
Appellees. Appeal From Cause No. 067-203396-03; the 6ih Judicial District Court Tarrant County, Texas, the Honorable Donald I.Cosby presiding
BRIEF APPELLEES, ROBERT WRIGHT AND JOHN VINCENT
Todd Hutton
State Bar No. 24012880
10270 213
Forney, Texas 75126
Telephone (214) 797-0808
Facsimile (972) 552-9484
ORAL ARGUMENT REQUESTED
COUNSEL FOR APPELLEES,
ROBERT WRIGHT AND
JOHN VINCENT
No. 02-06-00244-CV THE COURT APPEALS
FOR THE SECOND JUDICIAL DISTRICT
FORT WORTH, TEXAS
GAMAL ABDEL-HAFIZ,
Appellant,
ABC, INC., ABC NEWS, INC., ABC NEWS HOLDING COMPANY, INC., CHARLES
GIBSON, BRIAN ROSS, ROBERT WRIGHT AND JOHN VINCENT,
Appellees.
IDENTITY PARTIES AND COUNSEL
GAMAL ABDEL-HAFIZ, Appellant
Jeffrey Kaitcer
StateBar No. 1079750
MikeWindsor
StateBar No. 1760600
4200 Vickery Blvd. ortWorth, Texas76 185
Telephone: 17)377-0060 acsimile: 17)377- 120
TRIAL APPELLATE COUNSEL
ROBERT WRIGHT
AND JOHN VINCENT, Appellees
ToddW. Hutton
State Bar No. 240 12880
10270 213
Forney, Texas 75126
Telephone (214) 797-0808
Facsimile (972) 552-9484
TRIAL APPELLATE COUNSEL
ABC, INC., ABC NEWS, INC., ABC
Charles Babcock
NEWS HOLDING COMPANY, INC.,
State Bar No. 01479500
CHARLES GIBSON, BRIAN ROSS,
Jackson Walker LLP
Appellees
901 Main Street, 6000
Dallas, Texas 75202
Telephone: (214) 953-6000
Facsimile (214) 953-5822
TRIAL APPELLATE COUNSEL
TABLE CONTENTS
IDENTITY PARTIES AND COUNSEL......................................................i
TABLE CONTENTS...........................................................................iii
INDEX AUTHORITIES.........................................................................
STATEMENT THE CASE.............................................................. ........
ISSUE PRESENTED FOR REVIEW.
STATEMENT FACTS. .......
Contextual Overview. .....
Jurisdictional Facts................................................... .......
SUMMARY ARGUMENT....................................................................
ARGUMENT.. ............. ............... ............ .............................................
The trial court properly sustained Wrights and Vincents objections jurisdiction granting their respective Special Appearances;
thereby dismissing all claims against them because Texas without
personal jurisdiction general specific................................ ......
Jurisdictional Burdens Proof and Standards Appellate Review.......................................................
Abdel-Hafiz Has Waived Appellate Review. ....
Long-Arm Jurisdiction. .......
Due Process. ........................................
General Jurisdiction............ ........ ............ ....
Specific Jurisdiction ...
Texas Residency ...
Defamation Cases ........
111
The Effects Test
Abdel-Hafizs Actions
PRAYER
Texas Without Jurisdiction
Fair Play and Substantial Justice
CERTIFICATE SERVICE
INDEX APPENDIX
.41
INDEX AUTHORITIES
Cases
American Type Culture Collection Coleman, S.W.3d 801 (Tex. 2002)..... ..........26
Asahi Metal Industry Co. Superior Court, 480 102 (1987)...........................
Benoit Wilson, 239 S.W. 792 (Tex. 1951).................................................
BMC Software Belgium, NV. Marchand, S.W.3d 789
(Tex. 2002)
.21, 24, 25,
Burger King Corp. Rudzewicz, 471 462 (1985)....................... .... 24, 28, 41,
Calder Jones, 465 U.S. 783 (1984).............................................. .... ...... 28,
Franklin Geotechnical Services, Inc. 819 S.W.2d 219
(Tex. App. Fort Worth 1991, writ denied)... ........................... ......... .41
Guardian Royal Exch. English China,
815 S.W.2d 223 (Tex. 1991)...... ....................................... 24, 25, 26, 41,
Holt Atherton Indus. Inc., Heine, 835 S.W. (Tex. 1992)...... ......................
International Shoe Co. Washington, 326 310 (1945)................ ..................
Kawasaki Steel Corp. Middleton, 699 S.W.2d 199 (Tex. 1985).................. ......
Keeton Hustler Magazine, Inc. 465 770 (1984)................................... .....
Keever Finlan, 988 S.W. 300 (Tex. App. Dallas 1999, pet. dismd)........ .........
Lewis Indian
prings Land Corp. 175 S.W.3d 906
(Tex. App. Dallas 2005, pet.)........................................ .... .............
McCulley Fine Arts Gallery, Inc. Partners, 860 S.W. 473
(Tex. App. Paso 1993, writ)......................................................
Michel Rocket Engg Corp. S.W. 658
(Tex. App. Fort Worth 2001, pet.)................................. ....... 21, 22,
Michiana Easy Livin Country, Inc. Holten,
168 S.W. 777 (Tex. 2005)..................................... 19, 28, 29, 30, 31, 32,
Mills Bartlett, 377 S.W.2d 636 (Tex. 1964) ..................................................33
Owens Corning Carter 997 S.W.2d 560 (Tex. 1999)......................................33
Pacific Emplrs. Ins. Co. Dayton, 958 452
(Tex. App. Forth Worth 1997, pet. denied)...........................................23
Paul Gillrie Institute, Inc. Universal Computer Consulting Ltd.
183 S.W. 755 (Tex. App. Houston Dist.] 2005, pet.)....................37
Revell Lidov, 317 F.3d 467 Cir. 2002)...........................................36, 37,
Siskind Villa Found. Educ., Inc. 642 S.W. 434 (Tex. 1982).......................26
SITQ Inc. Reata Restaurants, Inc. 111 S.W. 638
(Tex. App. Fort Worth 2003, pet. denied).........................................25,
Wilson Belin, F.3d 644 Cir. 1994).....................................................38
Woodside Woodside, 154 S.W. 688 (Tex. App. Paso 2004, pet.)..............23
World-Wide Volkswagen Corp. Woodson, 444 U.S. 286 (1980).......................26,
Zac Smith Co. Otis Elevator Co. 734 S.W.2d 662 (Tex. 1987).........................27
Rules
TEX. CIV. 120a
TEX. APP. 38. (h) ....
STATEMENT THE CASE
This defamation case brought Tarrant County, Texas December 17,
2003, Appellant, Gamal Abdel-Hafiz (Abdel-Hafiz) against various ABC News
organizations (ABC); two ABCs employees; and two nonresident individuals Appellees, Robert Wright (Wright) and John Vincent (Vincent) (CR 20). Wright,
Indiana resident (CR 74), and Vincent, Illinois resident (CR 99), specially appeared
challenging Texas jurisdiction (CR 54; 79; 2136). Although Abdel-Hafiz filed initial
responses (CR 34; 44) Wright and Vincent Special Appearances, failed respond either their First Amended Special Appearances (CR 54; 79) the later Supplement
thereto (CR 2136). Moreover, his Affidavit was stricken from the record (Supp. 9).
And, despite the passage over two years since the inception the case, and
despite having deposed both Wright and Vincent, Abdel-Hafiz failed discover much
less plead any facts support jurisdiction Texas. the contrary, evidenced
the trial courts June 14, 2006, orders dismissal (CR 3358; 3359), Wright and Vincent
have irrefutably negated personal jurisdiction Texas. Indeed, having considered the
pleadings, evidence, and arguments counsel, the trial court agreed that lacked
jurisdiction over Wright and Vincent (Id. such, the only issue before this Court,
with respect Appellees Wright and Vincent, Abdel-Hafizs appeal (CR 3370) the
orders granting their Special Appearances.1 Although ight and Vinc ent did file subj ect their special appearances original answer and motion for
summar judgment, their motion was never eached below the trial ourt made its jurisdictional rulings prior
the summary judgment hearing. The hearing motion for summary judgment then went forward without
Wright and Vincent. ABCs motion was then properly granted the ial court tort was ever committed. That
ruling also being appealed Abdel-Hafiz and will addressed separately ABC its own esponse.
APPELLEES BRIEF
ISSUE PRESENTED FOR REVIEW
Whether the trial court properly sustained Wrights and Vincents objections
jurisdiction granting their respective Special Appearances; thereby dismissing
all claims against them because Texas without personal jurisdiction general
specific.
APPELLEES
RIEF
STATEMENT FACTS
Aside from Abdel-Hafizs obvious attempt impose liability ABC for
allegedly juxtaposing various otherwise admittedly factual statements made Wright,
Vincent, and others, along with his tortured attempt split hairs elaborate exercise verbal gymnastics over whether actually refused order record another
Muslim or, instead, simply refused the admitted request so, Abdel-Hafizs
Statement Facts and Argument are devoid any citations the record that
support Texas jurisdiction over Wright Vincent (Appellant Brief 2-12; 40-48).
Perhaps this because the record itself devoid any pleadings evidence support
jurisdiction this State. any event, the extent that the jurisdictional issues have not
now been waived Abdel-Hafiz, any, Wright and Vincent submit this rendition the
facts aid the Courts informed consideration this most interesting cases.
Contextual Overview2
This case stems, not from the actions disgruntled FBI agents, but from chain events that bookend the most unthinkable atrocity American history
9/11.
1999, Federal Bureau Investigation (FBI) Special Agents Wright and Vincent were
working international terrorism cases out the FBI Chicago Field Office. part Although this contextual overview not dispositive the central issue appeal whether Texas has personal
jurisdiction over Wright Vincent explanation events over the many years leading this point
believed vital the Courts understanding the context which this case arose. The overall story simply too
complic ated tell much less understand when relying solely upon the rather narrow jurisdictional record.
Thus, with the Courts indulgence, and although completely supported the broader summary judgment record,
this contextual overview sec tion intended solely for context and therefore contains itations the record.
Instead, proper citations the jurisdictional record support the trial courts dismissal are provided below
the jurisdictional facts section the Statement acts.
APPELLEES BRIEF
particular investigation code-named Vulgar Betrayal involving terrorist financing and
international money laundering Wright and Vincent, along with the United States
Attorneys Chicago office, wished obtain recording conversation with Muslim
subject subsequently proven have ties not only international terrorist financing
but Osama bin Laden well. the course their investigations, Wright and Vincent learned that Abdel-Hafiz,
then FBI Special Agent Dallas, had personal ties with and access the Muslim
subject. Astonishingly, the Muslim subject had indirectly contacted Abdel-Hafiz seeking
advice how the subject should handle his entanglement Federal Grand Jury
subpoenas stemming from major terrorism investigation. result, Wright and
Vincent, along with the United States Attorneys Chicago Office, requested that Abdel
Hafiz meet with the Muslim subject and wear wire consensuall record their
conversations regarding the subjects concern about the subpoenas. Abdel-Hafiz refused. April 15, 1999, conference call took place between the United States
Attorneys Chicago Office and the FBI Dallas Field Office pertaining the Vulgar
Betrayal investigation and the need record conversations with the Muslim subject.
that call Chicago were Wright, Vincent, and three Assistant United States Attorneys;
Dallas were Abdel-Hafiz and his FBI supervisor, Ronald Patton. During the call Abdel
Hafiz expressed his repeated reluctance wear wire while meeting with the Muslim
subject. Finally, when pressed the reason was refusing cooperate, Abdel-Hafiz
stated that Muslim does not record another Muslim. consensual recording one which the FBI agent knows the recording but the subject does not.
APPELLEES BRIEF
Obviously, Wright and Vincent, along with the other parties the conference call,
were shocked such response coming from FBI Special Agent. Abdel-Hafizs
statement was followed extended period awkward silence all who had heard
the ghastly refusal were state disbelief. Abdel-Hafiz tried explain away his
admitted refusal record Muslims cultural issue that the (ostensibly non
Muslim) parties the conference call would not understand. Apparently, Muslim
secretly recording another Muslim considered the ultimate act betrayal. was later learned Wright and Vincent that this was not the first time that
Abdel-Hafiz had refused record Muslim the course and scope his FBI duties.
Indeed, Abdel-Hafiz had previously refused cooperate with FBI Special Agent Bany
Carmody separate investigation out Tampa, Florida involving the need record
Muslim terrorist suspect Sarni Al-Arian.
Heated internal FBI discussions regarding Abdel-Hafizs refusal record the
Muslim subjects eventually culminated into Abdel-Hafizs initiation EEOC
complaint against Wright May 1999 alleging religious discrimination.
This
would the first long series actions whereby Abdel-Hafiz voluntarily thrust
himself into the glare public scrutiny under the auspices his Muslim religion.
part his defense the EEOC claim, and required agency procedures, Wright
executed sworn statement dated March 21, 2000, wherein recounted the events
surrounding Abdel-Hafizs refusal cooperate the Vulgar Betrayal investigation Although ironic and somewhat mind boggling, one must assume that its purely coincidental that the very act
secretly ecording Muslim fur ther anc FBI terrorism investigation code-named Vulgar Betrayal would itself consider the ultimate act betrayal.
APPELLEES
RIEF
the grounds that Muslim does not record another Muslim. Ultimately, the EEOC
complaint would dismissed Final Order from the Department Justice with
finding discrimination. And, far from being sanctioned over his admitted refusal
record fellow Muslims, December 2000, Abdel-Hafiz was promoted from Dallas the FBIs assistant legal attache the American Embassy Riyadh, Saudi Arabia.
Fast-forward 9/11. September 11, 2001, four commercial airliners were
hijacked international terrorists. Two planes were deliberately crashed into the World
Trade Center, third into the Pentagon, and the fourth into field Pennsylvania.
matter hours, these premeditated terrorist events resulted the intentional killing
approximately 3,000 people American soil. was later learned that intelligence agencies, including the FBI, had dropped
the ball international terrorism investigations that could possibly have prevented the
9/11 attacks. was widely reported that the FBI failed connect the dots. Indeed, the
controversy continues this very day. turns out, the overall controversy regarding
Abdel-Hafiz repeated refusals record Muslims would just one host agencywide FBI bungles relating botched international terrorism investigations. And was
these combined transgressions that finally convinced Wright and Vincent public
with their concerns about Americas safety. Although Abde l-Hafiz has chosen scr ibe Wright and Vincent disgr untle FBI age nts other have more
accur ately use the phrase Amer ican her oes. otably, since ight and Vincent riske the respective areer
going public with issues that they could longer ignore many aspects the American government have been
comple organize including but not limite the creation the Department Home land Security.
APPELLEES BRIEF
For example, part the raging public debate over international terrorism the
aftermath surrounding the events 9/11, May 30, 2002, public-interest foundation
known Judicial Watch, Inc. held press conference Washington, D.C. the heart the story was the FBIs negligence and recklessness with respect the events leading 9/11. Wright attended the press conference and gave emotional rendition FBI
failures including the FBIs inexplicable attempts thwart various comprehensive
investigations aimed identifying and neutralizing international terrorists and their
finances prior 9/11. part his presentation, Wright released redacted copy his March 21,
2000, sworn statement arising from Abdel-Hafizs failed EEOC complaint. copy
the sworn statement had previously been released the FBI under the Freedom
Information Act and was redacted hide privileged investigative matters including
Abdel-Hafizs name. Although Wright knew Abdel-Hafizs identity, the sworn statement
was read the press conference redacted the FBI referring Abdel-Hafiz only
Special Agent [blank].
Also released the Judicial Watch press conference was the sworn declaration
FBI Special Agent Barry Carmody recounting his own personal experience with Abdel
Hafizs prior refusal record Muslim suspect Sarni Al-Arian. Considering that the FBI
had already threatened Wright with imprisonment revealed privileged FBI
information, out abundance caution, Abdel-Hafizs name was also redacted from
APPELLEES
RIEF
Carmodys statement.
Indeed, Abdel-Hafiz has never been identified Wright
Vincent.
This important point because Abdel-Hafiz himself not now and never
was the focus Wrights Vincents public outcries regarding agency-wide FBI
incompetence. Wright, Vincent, and others, Abdel-Hafizs identity was but
footnote history relates the overall story FBI incompetence and how 9/11
and other terrorist attacks against America became unthinkable realities. Ironically,
was the FBI itself who later released Abdel-Hafizs identity FBI statement released advance ABCs December 19, 2002, airing the Primetime Live story primarily
issue this case.
Even cursory review the record reveals that there simply doubt that what
Wright, Vincent, and others have said and/or reported about Abdel-Hafizs refusal
record other Muslims tme. Abdel-Hafiz has himself admitted not only his reluctance record other Muslims but also the fact that never did record the Muslim subjects repeatedly requested both the Attorneys Chicago Office and several fellow
FBI Special Agents. And the indisputable tmth these matters further evidenced small part the trial courts granting ABCs motion for summary judgment
some degree inseparable from the overall jurisdictional analysis before this Court. short, his own admitted acts and omissions, and FBI Special Agent
with history working terrorism cases, Abdel-Hafiz has and continues inject
himself into the public debate and concern over international terrorism, its financing, and
APPELLEES BRIEF
Americas safety.
Indeed, this lawsuit yet another example Abdel Hafizs
apparently insatiable quest for notoriety knows full well that what Wright and
Vincent have said true. has admitted that refused record Muslims. Thus,
tort was ever committed. Yet Abdel-Hafiz goes full-steam-ahead with these frivolous
defamation claims and harassing appeals against Wright and Vincent. One must ask
why?
Jurisdictional Facts mentioned, April 15, 1999, conference call was placed from the U.S.
Attorneys Chicago office the FBI Dallas field office related the need for Abdel
Hafizs assistance the Vulgar Betrayal investigation (RR 4/12/16 5).6
that call Chicago were FBI Special Agents Wright and Vincent along with Assistant
United States Attorneys Mark Flessner, Steve Chanenson, and Joe Ferguson; and
Dallas were FBI Special Agent Abdel-Hafiz and his supervisor Ron Patton (Id. The
conference call was actually follow-up separate conference call the day before
wherein Abdel-Hafiz decide[ed] not pursue meeting with the Muslim subject aid the Vulgar Betrayal investigation (Id. 4-5). set forth Abdel-Hafizs
Supplemental Petition, apparently had procedural misgivings about the requested
recording (CR 118).
But when pressed the Assistant United States Attorneys the reason for his
refusal cooperate the investigation consensually recording the Muslim subject, Abde l-Hafiz intr oduced the documents the Spec ial Appearance aring and stifie that they were internal
FBI documents and were accurate (RR 12/06 77)
APPELLEES BRIEF
Abdel-Hafiz stated that such action would create grave safety issue for himself and his
family (Id. 5). Abdel-Hafiz further stated that did not trust the FBI protect him his family from the perceived dangers, insisting that the secret recording
conversation between Muslims regarded the ultimate act betrayal (Id. 5-6).
Finally, Abdel-Hafiz related that was cultural issue that [Mr. Flessner] wouldn
understand (Id. 6). Chicago later requested reconsideration the covert recording
if, any time the future, the perceived problem consensually monitoring Muslim
seeking advice regarding major U.S. Government criminal investigation overcome
(RR 4/12/16 2). the time the April 15, 1999 conference call, and all times relevant hereto, undisputed that Wright was resident the State Indiana (CR 74) and Vincent
was resident the State Illinois (CR 99); both were FBI Special Agents working out the Chicago Field Office. Also 1999, undisputed that Abdel-Hafiz was FBI
Special Agent working out the Dallas Field Office. And other than the two written
follow-ups through May 1999 cited above relating the requested recording the
Muslim subject neither Wright (RR 4/12/16 32; 77) nor Vincent (RR
4/12/16 13; 102) have had any further dealings with Abdel-Hafiz. December 13, 2000, Abdel-Hafiz was reassigned from Dallas and promoted the FBI assistant legal attache the American Embassy Riyadh, Saudi Arabia The Muslim subject that Chicago wanted recorded had actually approached Abdel-Hafiz March 12, 1999, for
advice and wanted meet with Abdel-Hafiz what about eder and Jury subpoena. was only
after Abdel-Hafiz later elayed this information Wright that consensual recor ding was equested the subject
was already par major iminal investigation (RR 121 .3-4)
APPELLEES BRIEF
(RR 4/12/06 46-47; 65; 2163; 21908). Abdel-Hafiz actually relocated Riyadh
early 2001 commence what was originally minimum two-year term assignment
through least February 13, 2003 (RR 4/12/06 46; 2169-70; 2190).
But, because things were going well Riyadh, and because did not want
come back Dallas, Abdel-Hafizs own request this initial term was extended
through least August 31, 2003, (RR 4/12/06 62; 2149; 2167-72). Abdel-Hafiz
even admits that, although his original assignment papers (CR 2190) state that claims
his actual residence Dallas, Texas, his residency claims actually have nothing
all with where resides; instead, the residency claims only relate which office was transferring from when left for Riyadh (RR 4/12/06 61-62; 2163-65).
They just told [him] write Dallas, Texas and sign (CR 2164). Indeed, when left
Dallas, Abdel-Hafiz never intended return here and fact did not want uproot
his family after only two years Riyadh didnt want come back (CR 2171).
Rather, his plans were grow with the FBI and obtain further promotions wherever
that might lead anywhere the world (CR 2172; 2177).9
Meanwhile, back the United States just months after Abdel-Hafiz left for
Riyadh early 2001 along comes 9/11. Wright and Vincent watched horror four
commercial airliners, the World Trade Center, and the Pentagon burst into deadly Abdel-Hafiz testified his deposition (CR 63) that the signature set forth Exhibit (CR 90) his. Unfor tunately, after his equested extension had been anted, Abdel-Hafizs intentions stay Riyadh were
foiled when allegations past insurance fraud came back haunt him. And February 26, 2003 FBI
administrative inquiry and temporary suspension forced Abdel-Hafiz back from Riyadh; arrived back Texas
March 14, 2003; and was eventually fired the FBI (RR 2106 50-5 ;63; 149; 8-69; 76).
APPELLEES BRIEF
infernos; each worried silently for months that the very men they might have stopped
years earlier were involved the terrorist attacks (Appellants Brief 8). Eventually,
public debate over 9/11 continued rage, Wright and Vincent could longer stay silent
about incompetence that they had witnessed firsthand FBI Special Agents. March 30, 2002, Wright appeared press conference hosted Judicial
Watch, Inc. Washington, (CR 26; 76-77). Wright released copy the sworn
statement that had prepared March 21, 2000, defense the religious
discrimination claims asserted Abdel-Hafiz just after internal FBI controversy over his
refusal record the Muslim subject (Id.
Wright actually obtained copy the
statement from the FBI pursuant the Freedom Information Act and had already
been redacted hide Abdel-Hafizs identity and other privileged matters (Id. And
although Wright knew his identity, time did Wright anyone else the press
conference ever disclose Abdel-Hafizs identity (Id.
Indeed, alleged Abdel
Hafizs petition, was simply referred unnamed Muslim agent (CR 26).
Later, December 2002, Wright and Vincent conducted joint interview with
ABC Chicago (RR 4/12/06 75; 100). Portions the
interview were aired ABC December 19, 2002, and form the primary focus this
litigation (CR 20; 75-76; 100-02; 112). Again, neither Wright (RR 4/12/06 Abde l-Ha fiz also complains Wall Stree Journa piece (CR 27; that essentially regurgitate the material forth Wrig hts March 2000 sworn state ment, Mr. Carmodys March 30, 2002 claration
pertaining the prior refu sals cord Muslims. When sked why did not sue the Wall Street ournal, Abdel
Hafiz replied because they attributed everything somebody (RR 2106 remains unclear
exactly how the Street Journal obtained Abdel-Ha fiz identity.
APPELLEES BRIEF 76) nor Vincent (CR 100) ever disclosed Abdel-Hafizs identity during the ABC
interview (RR 4/12/06 1).
The interview was conducted Chicago; had connection Texas; did not
focus upon Texas; and was never intended for directed Texas audience (RR
4112106 75-76; 100-101). Nor did Wright (CR 75-76) Vincent (CR 100
101) ever foresee that any harm might occur Texas. Indeed, the time the ABC
interview, was Wrights (CR 76) and Vincents (CR 101) understanding that AbdelHafiz had been assigned and was residing Saudi Arabia. Wright and Vincent were
told just before the December 2002, ABC interview that Abdel-Hafiz was Riyadh;
they had personal knowledge where his travels had taken him since their last
encounter with him April 1999; and had reason doubt that was, fact,
Riyadh (CR 76; 101; 4/12/06 32; 13; 46). And set forth above, turns out that was.
Moreover, Abdel-Hafiz himself urges herein (Appellant Brief 14),
time did either Wright Vincent ever say that had refused order anything.
The only thing that Wright and Vincent said about the fact Abdel-Hafizs repeated
refusals the requests record the Muslim subject was the very reason that AbdelHafiz himself gave them Muslim doesn record another Muslim (Appellants Other than blind speculation unsupporte any credible evidence remains unclear how Abde l-Hafiz claims the only Muslim agent the FBI Neither Wright (CR 76) nor Vincent (CR 02) know the exact ligious
affilia tion all FBI agents; nor are they aware any such statistics kept the FBI and the are certa inly unable identify Muslim simply looking him her.
APPELLEES BRIEF
Brief 10; 4112106 55-56; 14; see also generally, 40).
Indeed, contrary his apparent belief, and corroborated the undisputed fact
that they never named him, neither Abdel-Hafiz himself nor the State Texas was ever
the focus Wright and Vincents overall dismay with the ill-state international
terrorism investigations conducted the FBI the years preceding 9/11 (CR 75; 100).
Thus, nothing that Wright (CR 75-76) Vincent (CR 100-101) said about Abdel-Hafiz
was ever intended directed the State Texas wasnt even here was Riyadh (RR 4/12/06 61-63; 65; 2149; 2163; 2168-70; 2190).
Instead, their
comments were intended for the global consumption Americans generally matters legitimate public debate (CR 76; 101). They were concerned for all Americans not
just Texans. short, evidenced throughout the record, Wright and Vincent never said
anything that was false about Abdel-Hafiz. Therefore, tort was ever committed not Texas not anywhere. And neither Wight (CR 73; 74-78; Supp. nor Vincent
(CR 98; 99-104; Supp. have had any other contacts with the State Texas that
rise level minimum contacts for purposes general jurisdiction under the
constitutional constraints due process. And this truth not shaken the fact that
Vincent traveled Dallas March 4-5, 2003, the course and scope his new
employment12 with Judicial Watch, Inc. for the purpose press conference related Just after the December 2002 intervie Chicago, Vincent tired from the FBI after ars ithful and loyal service (RR 2/06 14; 00).
APPELLEES BRIEF
the D/FW areas ties international terrorist money laundering fronts such the Holy
Land Foundation located Richardson, Texas (RR 4/12/06 27-28; 33;
98; 102; 104).
After his FBI retirement, Judicial Watch hired Vincent its Counterterrorism
Director specifically furtherance its investigations into overall governmental
incompetence leading 9/11 (RR 4/12/06 33; 98; 102; 104). The press
conference had relationship nor did anyone ever refer Abdel-Hafiz (Id.).
Basically, was old news. Moreover, set forth above, Abdel-Hafiz was still
Riyadh the time the March 2003, Dallas press conference. And was only after
the Judicial Watch press conference concluded that reporters presented Vincent with
unsolicited questions about Hafiz (CR 102).
From all accounts, the press large was starting probe not into the Muslim
recording issues but instead into the more recent developments related Abdel-Hafizs
FBI suspension over alleged insurance fraud matters (RR 4/12/06 50-51; 63; 77;
102; 2149; 2168-69; 2176). But the time the Judicial Watch press conference,
Vincent had personal knowledge related the facts Abdel-Hafizs recent FBI
suspension or, for that matter, where Abdel-Hafiz was located (CR 102).
The last
Vincent had heard was that Abdel-Hafiz was hiding out after being suspended from
Saudi Arabia (Id.). There simply evidence that
APPELLEES BRIEF
any
statements made Vincent
ever defamed Abdel-Hafiz even referred his alleged ties the State Texas.13 fact, Abdel-Hafizs March 18, 2004 Affidavit (CR 42-43; 52-53) was stricken
from the record upon Wright and Vincents motion (Supp. 9).
The stricken
Affidavit (CR 42; 52) was Abdel-Hafizs only attempt supporting his allegation that
Vincent somehow committed tort while physically here Texas during the March 4-5,
2003, business trip for Judicial Watch. Thus, there simply evidence any tortious
conduct Vincent Texas.
Indeed, judging from the entire record, the only allegations that relate any
statements made either Wright Vincent that actually refer Abdel-Hafiz
name; and occurred while Abdel-Hafiz actually resided Texas (i.e. had physical
presence combined with colorable intent stay here) are related Frontline
story that aired October 2003 (CR 120). The story itself was actually about AbdelHafiz and his various escapades through his years with the FBI including the so-called
Lackawanna Six case (CR 102-103). part the story, August 2003 PBS reporter initiated unsolicited contact
with Vincent via telephone call into his Judicial Watch office located Chicago (Id.
Like those the Dallas reporters earlier on, her inquiries focused not upon the Muslim However, set forth above, the evidence does show that February 2003, FBI administra tive inquiry
and temporary suspension forced Abdel-Hafiz out Riyadh; arrived back Texas March 14, 2003; and eventually fire the FBI (RR 2/06 50-5 ;63 149; 68-69; 76). such, did not arrive back Texas until nine days fter the Judicial Watch pre conference There simply way for Vincent have
predicted the events and certainly had control over them.
APPELLEES BRIEF
recording issues14 but upon her quest determine the broader issue why AbdelHafiz had been fired the FBI (Id.). Again, there was never any mention Texas
during the conversation and Abdel-Hafizs actual whereabouts and/or intentions were
still unknown Vincent (Id.).
Indeed, even through discovery
this case, has been difficult pinpoint
exactly what Abdel-Hafiz intended and even where resided any given time.
this regard, the stricken Affidavit (CR 42-43; 52-53) prime example that too
played fast-and-loose with various dates relating exactly when Abdel-Hafiz allegedly
resided had home Texas. And the record reveals, the stricken Affidavit
was Abdel-Hafizs only notable attempt support his theory Texas residency his
failed attempt bootstrap Texas jurisdiction over Wright and Vincent the trial comi
below.
Thus, little wonder that Wright and Vincent had request Supplemental
Clerks Record (Supp. 11) bring the defining moment the stricken Affidavit
this Courts attention. Apparently, Abdel-Hafiz would have preferred that the Court
never learn his ill-fated Affidavit (Supp. 9). But there also little doubt that
its absence further explains why, set forth above, Abdel-Hafizs Statement Facts
and Argument are wholly devoid any citations the record that support Texas
jurisdiction over Wright Vincent (Appellants Brief 2-12; 40-48). Abdel-Hafiz allegations (CR seem insinuate that Wright prepare affidavit for the PBS story.
reality, the ference the same sworn state ment prepared Wright part Abdel-Hafiz EEOC compla int.
The story specifically state that Wright unable comment (CR 77). And Wright was still unaware Abdel
Hafizs location the time (Id.).
APPELLEES BRIEF short, other than thinly veiled legal conclusions yearningly cast unsupported
factual allegations, combined with failed evidence that has been ruled inadmissible lacking any probative value, the overall record simply devoid any pleadings,
evidence, other support for the exercise personal jurisdiction over Wright Vincent Texas. Instead, the facts, the record, and the law irrefutably negate jurisdiction this
State Texas without personal jurisdiction over Wright Vincent.
APPELLEES BRIEF
SUMMARY ARGUMENT
While this case may involve several legal issues that are sometimes intertwined,
and the factual background might fairly described somewhat perplexing, the bottom
line issue really quite simple the exercise personal jurisdiction over nonresident
defendants, states are bound the Constitutional constraints Due Process.
Thus,
before jurisdiction may asserted over nonresidents any Texas Court, must first
shown that both our State and Federal Constitutional safeguards are fully honored. best can deciphered from his conclusory allegations, the apparent gist
Abdel-Hafizs jurisdictional argument that Wright and Vincent have somehow
directed defamatory statements toward the State Texas. The theorys foundation
comprised the unsupportable notion that, since Wright and Vincent knew Abdel
Hafiz worked Dallas, Texas April 1999, they necessarily must have thought
resided Tarrant County, Texas December 2002, such that they directed the
ABC interview toward Texas. But, the trial court found below, the law and facts
irrefutably negate Abdel-Hafizs flawed jurisdictional theory. sure, the theorys
foundation crumbles under the weight informed judicial scrutiny .15
The trial court below was doubt guided, not only the record, but also the
Texas Supreme Courts express disapproval the so-called directed tort theory
jurisdiction that Abdel-Hafiz relies upon herein. See
Holten, 168 S.W. 777 789-792 (Tex. 2005).
Michiana Easy Livin Country, Inc.
Quite simply, Texas court may not assert
jurisdiction over nonresident unless his contacts with this State are constitutionally Moreover, Abdel-Hafiz failed preserve review his challenge the tria court orders dismissal.
APPELLEES BRIEF
sufficient. this regard, Texas law provides that, even tortious conduct alleged
have occurred Texas, the assertion personal jurisdiction over Wright and Vincent
based upon Abdel-Hafizs alleged Texas residency is, without more, unconstitutional.
This because the jurisdictional inquiry strictly limited Wrights and
Vincents contacts with Texas not those Abdel-Hafiz. And any event, Abdel
Hafizs claims Texas residency are dubious best. Thus, even assuming arguendo
that Abdel-Hafiz enjoyed Texas residency during the relevant timeframes, neither his
unilateral activity, nor that any other third party such the FBI, ABC PBS,
would relevant the jurisdictional inquiry hand. And assuming even further that
Abdel-Hafizs hypothetical Texas residency was somehow relevant, would still have shown that Wright and Vincent also knew resided Texas such that they
directed their alleged tortious activity toward this State impossible task. Thus,
even when one ignores the facts and ignores the law giving all benefit any doubt
solely Abdel-Hafiz still loses. sum, were found that Texas has jurisdiction over this matter, one could
hardly imagine future set facts that might escape the halls Texas Courthouse.
Therefore, the trial courts dismissal must affirmed lest our State fall back into its
darkest days and reputation being forum-shoppers delight. matter law
informed constitutional safeguards and sound public policy Texas without
jurisdiction.
APPELLEES BRIEF
ARGUMENT
The trial court properly sustained Wrights and Vincents objections
jurisdiction
granting
their respective Special Appearances;
thereby
dismissing all claims against them because Texas without personal
jurisdiction general specific.
Jurisdictional Burdens Proof and Standards Appellate Review
The plaintiff bears the burden pleading sufficient allegations bring
nonresident defendant within the provisions the Texas long-arm statute. BMC Software
Belgium, NV.
Marchand, S.W.3d 789, 793 (Tex. 2002). nonresident challenging
Texas jurisdiction must then specially appear and negate the jurisdictional allegations.
Id. And although factual questions exist the determination whether trial court has
jurisdiction over nonresident, jurisdiction itself question law. Id. 794; Michel
Rocket Engg Corp., S.W. 658, 667 (Tex. App. Fort Worth 2001, pet.). order develop the necessary evidence address any factual issues that may
arise the determination jurisdiction, Texas Rule Civil Procedure 120a provides
that special appearance made sworn motion; and that the trial court must
determine the special appearance the basis the pleadings, such affidavits and
attachments may filed, the results discovery, and any oral testimony. TEX.
CIV. 120a. (App. Tab 1).
Upon the appeal jurisdictional ruling and where, here, the trial court has not
been requested and has not issued findings fact, the reviewing court should presume
that the trial court resolved all factual disputes favor its judgment. Marchand,
S.W.3d 789, 794-795. Moreover, the appellate court must uphold the trial courts order
APPELLEES BRIEF any legal theory finding support the evidence.
Michel, S.W. 667.
However, where, also here, the record includes both the clerk and reporters records,
the trial courts implied findings are not necessarily conclusive and may challenged
legal and/or factual sufficiency points.
Id. 667-668 (emphasis added).
sufficiency the evidence challenged, the standard review the same that
applied reviewing jurys finding trial courts findings fact. Id. 668. such
instance, the appellate court must consider all the evidence that was before the trial court,
including pleadings, affidavits, exhibits, the results discovery, and oral testimony. Id.
Thus, the determination evidence legal sufficiency challenge, the
appellate court must consider only the evidence, along with all reasonable inferences
drawn therefrom which, when viewed their most favorable light tend support the
finding while disregarding all evidence and inferences the contrary. Holt therton
Indus. Inc.,
Heine, 835 S.W. 80, (Tex. 1992). such, there more than
scintilla evidence support the finding, evidence challenge necessarily fails. Id. contrast, determining factual sufficiency, the appellate court may reverse
the trial courts decision only if, after reviewing all the evidence, the disputed factual
determination against the great weight and preponderance the evidence
manifestly wrong. Michel, S.W. 667-668. However, determining factual
sufficiency, the reviewing court cannot simply substitute its own conclusions for those
the fact finder; there sufficient evidence support the finding must sustained.
APPELLEES BRIEF
McCulley Fine Arts Gallery, Inc. Partners, 860 S.W. 473, 480-481 (Tex. App. Paso 1993, writ). this regard, not within the province the appellate court resolve
evidentiary conflicts pass the weight and/or credibility witnesss testimony.
Id. 481 (citing Benoit Wilson, 239 S.W. 792, 796 (Tex. 1951)). Instead, there
conflicting evidence appeal, the trial courts decision generally regarded
conclusive. Partners, 860 S.W. 480-481; see also, Michel, S.W. 668
(citing Partners, 860 S.W. 480).
Abdel-Hafiz Has Waived Appellate Review
With description these admittedly intertwined standards review for
jurisdictional rulings hand, and based upon analysis Abdel-Hafizs Brief, is,
best, unclear exactly what type challenge asserting herein. (Appellants Brief
16; 40-48). complaint appeal must address specific error and not merely attack the
trial courts order general terms. Pacific Emplrs. Ins. Co.
Dayton, 958 452,
454-455 (Tex. App. Forth Worth 1997, pet. denied); see also, Woodside
Woodside,
154 S.W. 688, 690-691 (Tex. App. Paso 2004, pet.). such, with respect the trial courts granting Wright and Vincents Special
Appearances, Abdel-Hafizs legal and/or factual sufficiency points, any, are waived. failing identify his complaint, and compounded his failure cite any
allegations the record any legal authorities support his contentions, has failed preserve any arguments for review. TEX. APP. 38.l (h) (App. Tab 2); see also,
APPELLEES BRIEF
Keever Finlan, 988 S.W. 300, 314 (Tex. App. Dallas 1999, pet. dismd).
Nevertheless, the extent that the issues are not waived, any, Wright and Vincent
present the following review constitutional standards for the assertion jurisdiction
over nomesidents Texas.
Long-Arm Jurisdiction
Due Process
The Due Process Clause the U.S. Constitution limits the power state court exert personal jurisdiction over nomesident defendants. Asahi Metal Industry Co.
Superior Court, 480 102, 108, (1987). Indeed, courts primary consideration the
assertion long-arm jurisdiction whether the courts assertion jurisdiction over
nomesident defendant consistent with the federal Constitutional requirements Due
Process. Guardian Royal Exch. English China, 815 S.W.2d 223, 226 (Tex. 1991).
Due process requires that the exercise personal jurisdiction over nomesidents
meet two-prong test; first, the defendant must have purposefully established minimum
contacts with the forum; and second, the exercise jurisdiction must satisfy traditional
notions fair play and substantial justice. Burger King Corp. Rudzewicz, 471
462, 472-474, (1985). the quality and nature the defendants contacts with the
forum that are determinative. International Shoe Co. Washington, 326 U.S. 310, 319
(1945). this regard, foreseeability important consideration deciding whether
nomesident defendant has purpo!efully established minimum contacts. Marchand,
APPELLEES BRIEF
S.W.3d 795. This because individuals must have fair warning that particular
activity may subject them the jurisdiction foreign state. SITQ Inc.
Reata
Restaurants, Inc., 111 S.W.3d 638, 646 (Tex. App. Fort Worth 2003, pet. denied). But, will shown, although foreseeability provides the necessary fair warning, alone
will not support personal jurisdiction.
Under the minimum contacts analysis, personal jurisdiction exists only the
defendants contacts with the forum give rise either general specific jurisdiction.
Marchand, S.W.3d 795. the litigation does not arise from the defendants
contacts with the forum, but his contacts are continuing and systematic, then the
exercise general jurisdiction may proper; otherwise, when the litigation does arise
out relate the defendants contacts with the forum, the exercise specific
jurisdiction may considered. Id. Wright and Vincent will address the jurisdictional
issues herein under both recognized theories general and specific.
General Jurisdiction
Again, general jurisdiction applies when controversy does not grow out
defendants specific contacts with Texas, but rather when defendants contacts with
Texas are continuing and systematic such that the constitutional test minimum
contacts satisfied. Guardian Royal, 815 S.W.2d 230. And since the cause action
need not arise from the contacts with the forum, general jurisdiction requires more
demanding minimum contacts analysis than would that for specific jurisdiction.
Marchand, S.W.3d 797.
APPELLEES BRIEF
The mimmum contacts analysis asks whether the nomesident defendant has
purposefully availed himself the privilege conducting activities within the forum
state, thus invoking the benefits and protections its laws. Guardian Royal, 815 S.W. 226. This ensures that nomesident defendant will not haled into jurisdiction
based solely upon random, fortuitous attenuated contacts. Id.
Indeed, essential
goal the analysis protect the defendant. World- Wide Volkswagen Corp.
Woodson, 444 286, 292 (1980).
Therefore, plaintiff must make more particularized showing the defendants
contacts with Texas order establish general jurisdiction. American
ype Culture
Collection
Coleman, S.W.3d 801, 807 (Tex. 2002). And defendant need only
negate any bases for personal jurisdiction that plaintiff has actually alleged. Kawasaki
Steel Corp.
Middleton, 699 S.W.2d 199, 203 (Tex. 1985). Thus, the absence
sufficient general jurisdiction allegations, defendant meets his burden proof
merely presenting evidence that nomesident. Siskind
Villa Found. for Educ.
Inc., 642 S.W. 434, 437-38 (Tex. 1982). Wright and Vincent have gone above and
beyond this burden. set forth above, Abdel-Hafiz bears the initial burden pleading sufficient
allegations bring nomesidents Wright and Vincent within the provisions the long
arm statute and due process principles. Marchand, S.W.3d 793. And Abdel-Hafiz
has not specifically pled (CR 20; 112), nor does appear argue herein (Appellants
APPELLEES BRIEF
Brief 16), that either Wright Vincent have any continuing and systematic contacts
with Texas. set forth their Affidavits (CR 74; 99), which were attached and filed with
their sworn (CR 73; 98)) First Amended Special Appearances (CR 54; 79) and
incorporated therein reference, Wright and Vincent are nonresidents Texas. This
fact undisputed. Further, Wright (CR 75) and Vincent (CR 100) have continuing
systematic contacts with the State Texas and have not availed themselves the
privileges, benefits protections Texas law. Moreover, any general contacts with
this State arising from Wrights Vincents respective employment with the FBI and/or
Judicial Watch, Inc. are protected under the fiduciary shield doctrine. See e.g. SITQ
Inc. Reata Restaurants, Inc., 111 S.W. 638, 651 (Tex. App. Fort Worth 2003, pet.
denied); (CR 2140; 4/12/06 85-87). such, Texas without general jurisdiction
over Wright Vincent.
Specific Jurisdiction
Recall that specific jurisdiction arises directly
rom the defendants contacts with
the forum. Therefore, when specific jurisdiction alleged the inquiry has two parts
first, the defendants activities must have been purposefully directed the forum; and
second, the litigation must result from injuries that arise out relate those
activities. Zac Smith Co. Otis Elevator Co. 734 S.W.2d 662, 663 (Tex. 1987). And
although some courts have held that single contact may sufficient establish
APPELLEES BRIEF
specific jurisdiction, the contact itself must have resulted from the defendants purposeful
conduct not the unilateral activity the plaintiff other third parties. this regard, the very touchstone jurisdictional due process purposeful
availment. Michiana Easy Livin Country, Inc. Holten, 168 S.W. 777, 784 (Tex.
2005).
Therefore, each case essential that there some act which the
defendant purposely avails himself the privileges and protections the laws the
forum state. Id. And only the defendants contacts with the forum not those the
plaintiff any other third party that count. Id. 785. The defendants acts must
purposeful rather fortuitous. Id.
Indeed, the defendant must purposefully seek some
benefit, advantage, profit availing himself the forum. Id. sum, the relevant
inquiry the extent the defendants activities, not merely the residence the alleged
victim. Id. 789.
Thus, even though allegations that tort was committed Texas may satisfy the
jurisdictional requirements the long-ann statute, more required satisfy the
constitution. Id. 788. Mere foreseeability where plaintiff may bear the brunt
his injury simply not sufficient benchmark for exercising personal jurisdiction. Id. 789 (citing Burger King Corp. Rudzewicz, 471 U.S. 462 (1985). And even though one occasion, discussed more fully below, the United States Supreme Court upheld
specific jurisdiction based upon alleged defamation intentionally directed forum
state, Calder Jones, 465 U.S. 783 (1984), companion case decided the same day, Abdel-Hafiz has tried downplay the significance Michiana because not mation case
Neverthele ss, tort case and, will shown, constitutional safeguards dont fluctuate based solely upon the
cause action asserted ainst nonresidents such Wright and Vincent.
APPELLEES BRIEF
Keeton
Hustler Magazine, Inc., 465 U.S. 770 (1984), shows that the deciding factor
was the extent the defendants activities and their presence the forum, not merely
the residence the alleged defamation victim. See Michiana, 168 S.W. 789.
And whether not jury might have found the underlying articles these
Supreme Court cases defamatory, there was question that the articles themselves
constituted substantial presence the forum states the defendants. Id. And here the record clear that Wright and Vincent have extensive activities
presence Texas. And they are certainly not employees any the publishers
issue.
Further opining these and disapproving other directed tort type cases,
the Michiana Court stated follows:
Several problems arise jurisdiction turns not
defendants contacts, but where directed tort. First,
shifts courts focus from the relationship among the endant, the forum, and the litigation the relationship
among the plaintiff, the forum and the litigation. The
place where plaintiff relies fraud may determine the
choice law, but choice-of-law analysis considers all parties,
local courts, legal policies, interested states, and the interstate
and international systems. contrast, minimum-contacts
analysis focuses solely the actions and reasonable
expectations the defendant.
Second, directed-a-tort jurisdiction confuses the roles judge and jury equating the jurisdictional inquiry with
the underlying merits. purposeful availment depends
whether tort was directed toward Texas, then nonresident
may defeat jurisdiction proving there was tort.
Personal jurisdiction question law for the court, even requires resolving questions fact. But what judge
and jury could disagree? May trial judge effectively grant
APPELLEES BRIEF
summary judgment local jurisdiction deciding
contested liability facts favor the defendant? And
jury absolves defendant tort liability, the judgment
void because the court never had jurisdiction the defendant the first place?
Business contacts are generally matter physical
fact, while tort liability (especially misrepresentation cases)
turns what the parties thought, said, intended. Far better
that judges should limit their jurisdictional decisions the
former rather than involving themselves trying the latter.
Third, cases dealing with commerce, plaintiff
often has the option sue either contract tort. Here, for
example, Holten alleged tort, contract, and statutory claims, Texas law often allows plaintiff do. directing tort Texas enough, then personal jurisdiction arises when
plaintiffs allege tort, but not when they allege breach
contract. Thus, the endants purposeful availment depends the fonn claim selected the plaintiff.
**** their dissenting opinion, our colleagues remind
seven times that Michiana did not deny Holtens fraud
allegations. course, Michiana did deny his allegations
its answer, but rightly focused its jurisdictional affidavits
lack contacts rather than lack culpability. Jurisdiction
cannot turn whether defendant denies wrongdoing
virtually all will. Nor can turn whether plaintiff merely
alleges wrongdoing again virtually all will.
committing tort establishes jurisdiction, our colleagues will
have decide who correct and then the Texas
jurisdictional rule will guilty nomesidents can sued
here, innocent ones cannot. The dissenting opinion shows
little doubt that score; but address jurisdictional
questions this spirit, nomesidents will avoid not just our
courts but our state and all its residents well.
For the reasons stated above, disapprove those
opinions holding that (1) specific jurisdiction necessarily
established allegations evidence that nomesident
APPELLEES BRIEF
committed tort telephone call from Texas number,
that (2) specific jurisdiction turns whether defendants
contacts were tortious rather than the contacts themselves.
Michiana, 168 S.W. 790-792 (Tex. 2005)(citations omitted)(emphasis original). the instant case, other than legal conclusions (CR 25-26), Abdel-Hafiz appears base the gist his jurisdictional argument largely the notion that Wright and
Vincent directed defamatory statements toward the State Texas under the theory that
they somehow knew allegedly resided was employed here (see e.g. 28;
30; 113; 116; 119). Not only does this jurisdictional theory rely upon unsubstantiated
speculation what Wright Vincent intended, would improper the
jurisdictional stage attempt reach into Wrights Vincents mind effort
determine what they thought. set forth Michiana, the proper focus must remain physical facts.18 this regard, there evidence that Abdel-Hafiz actually did reside
work Texas the relevant times.
Wright and Vincent have negated these
allegations was residing and working Riyadh (Supp. 4112/06 61-63;
65; 2149; 2163; 2168-70; 2190). one isolated instance, Abdel-Hafiz alleges that
2003, Vincent purposely traveled Texas defame, libel, and slander Plaintiff (CR
36). Likewise, one isolated instance, Abdel-Hafiz alleges that 1999, Wright Most these Texas references are sprinkled throughout Abdel-Hafizs Supplemental Petition, which was filed
after Wright and Vincent specially appeared. any event, Wright and Vincent have negated not only any
allegations that Abdel-Hafiz resided Texas but certainly any allegations that they thought did. See, Lewis Indian
prings Land Cmp. 175 S.W.3d 906, (Tex. App. Dallas 2005 pet.)( analyzing
and recognizing that jurisdiction turns only defendants physical contacts with forum; not whether
the contacts were tortious; and not where defendant knew the brunt any injury would felt).
Michiana
APPELLEES BRIEF
FBI Agent had telephone contact with the Dallas office the FBI. (CR 45). Notably,
both these allegations are set forth Abdel-Hafizs responses Wrights and
Vincents initial pleadings, which were later superseded their First Amended Special
Appearances (CR 54; 79). Abdel-Hafiz never responded either these live pleadings the Supplement (CR 2136) thereto.
And aside from these two physical facts, the overall allegations Abdel-Hafizs
pleadings focus generally what the parties thought intended around 2002 with
respect his residency theory. Other than repetitious legal conclusions, what Abdel
Hafiz fails show how any these allegations translate into constitutionally
permissible jurisdiction. This hurdle cannot overcome because the jurisdictional focus
must remain Wrights and Vincents physical contacts with Texas not whether
their contacts were tortious what they might have thought intended.
Quite simply, there valid authority holding that one phone call Dallas,
single trip Texas, amounts the purposeful availment the privileges and protections the laws this State. See Michiana, 168 S.W. 789-90. Thus, even were
shown that Abdel-Hafiz resided Texas any relevant time, and further shown that
Wright and Vincent somehow knew resided here such that they directed the
alleged defamation toward this forum the constitutional mandates due process would
still require dismissal his claims.
This because, without more, merely directing tort toward Texas
constitutionally insufficient ground for asserting personal jurisdiction over nonresidents
APPELLEES BRIEF
such Wright and Vincent. And not only has Abdel-Hafiz failed specifically plead,
much less come forward with evidence anything more, cannot even show that
resided Texas his residency has been negated. Moreover, Abdel-Hafiz certainly
cannot show, nor, despite having deposed them, there any evidence that Wright
Vincent somehow knew resided Texas didnt. (RR 4/12/06 46-47; 65; 76; 101; 2149; 2163-72; 2190; etc.)
Texas Residency
While intent necessary establish residence, alone not sufficient. Mills
Bartlett, 377 S.W.2d 636, 637 (Tex. 1964). fact, [n]either bodily presence nor
intention alone will suffice create residence, but when the two coincide that
moment the residence fixed and determined. Id. That is, permanent residence
Texas requires home and fixed place habitation which person intends return
when away.
Owens Corning
Carter, 997 S.W.2d 560, 571 (Tex. 1999). Therefore,
physical presence, along with home and fixed place habitation Texas, are each
indispensable for the creation residency this State. Abdel-Hafiz can show neither
Wright and Vincent have negated both.
And, set forth above, Abdel-Hafiz himself readily admits not only absence from
the State but also that didnt want come back Texas. never specifically
intended return Texas after being promoted then reassigned from Dallas
the FBIs assistant legal attache the American Embassy Riyadh, Saudi Arabia (RR
4112106 46-47; 65; 2163; 2169-70; 2190). Indeed, because things were going
APPELLEES BRIEF ge33
well Riyadh, and because did not want come back Dallas, Abdel-Hafizs
own request this initial term was extended through least August 31, 2003, (RR
4/12/06 62; 2149; 2167-72).
Abdel-Hafiz further admits that, although his original assignment papers (CR
2190) state that claims his actual residence Dallas, Texas, his residency claims
actually have nothing all with where resides; instead, the claims only relate the office from which was transferring when left for Riyadh (RR 4/12/06
62; 2163-65). They just told [him] write Dallas, Texas and sign (CR 2164).
Indeed, when left Dallas, Abdel-Hafiz never intended return here and fact did
not want uproot his family after only two years Riyadh didnt want
come back (CR 2171). Rather, his plans were grow with the FBI and obtain further
promotions wherever that might lead anywhere the world (CR 2172; 2177). was not until FBI administrative inquiry arose related insurance fraud
that, despite his prior requested and approved extension Riyadh through least
August 2003, Abdel-Hafiz was removed from Saudi Arabia the FBI March 14,
2003. (RR 4/12/06 50-51; 63; 2149; 2168-69; 2176). This date well after the
occurrence all but one the alleged defamatory publications March 30, 2002,
Judicial Watch Washington, D.C. press conference; November 26, 2002 Wall Street
Journal article; December 19, 2002, ABC broadcast; March 2003, Judicial Watch
Dallas, Texas press conference.
APPELLEES BRIEF
Indeed, the only allegation that stems from period when Plaintiff purports
have been physically present and actually living Texas the mid-2003 PBS
Frontline interview. And again, there evidence that either Wright Vincent knew Plaintiff whereabouts that time. Nor there any evidence that the PBS interview Vincent involved any purposeful contact with Texas. There not even evidence that
Plaintiff intended back Texas that time. Indeed, but for the insurance
fraud inquiry the FBI, Abdel-Hafiz was slated Riyadh through least
August 31, 2003 again after PBS called Vincent Chicago.
These facts remam
undisputed.
Also undisputed the fact that Abdel-Hafizs return Texas from Riyadh was
the direct result actions beyond the control Wright Vincent. was the FBI that
sent Plaintiff back Texas. did not want return. (RR 4/12/06 62; 2149;
2167-72).
This important point, not only because further negates the failed
directed tort theory jurisdiction, but also because, set forth above, the
purposeful availment doctrine mandates that only Wrights and Vincents individual
contacts with the forum considered. other words, the unilateral activities Abdel
Hafiz and/or other third parties such the FBI, ABC, PBS, etc. are irrelevant the
jurisdictional inquiry relates Wright Vincent.
Under these facts, Abdel-Hafizs directed tort theory were hold water,
then jurisdiction defamation cases could unilaterally controlled upon the whim
APPE EES BRIEF
any plaintiff who decided reside any state any time. This exactly what the
Texas Supreme Court has forbidden.
Defamation Cases
Under federal law, defamation cases require knowledge the particular forum
which potential plaintiff will bear the brunt the harm and intentional direction
conduct toward that forum, distinguished from any other. These benchmarks form
essential parts the constitutional exercise jurisdiction over nonresidents. Revell
Lidov, 317 F.3d 467, 475 (5t Cir. 2002). Revell, case strikingly similar the instant
proceeding, one the defendants, Mr. Lidov, posted article Columbia Universitys
website which expressly singled out and named the plaintiff, Mr. Revell. Id. 469.
The article charged Mr. Revell, then Associate Deputy Director the FBI, with prior
knowledge the bombing Pan Flight 103 and accused him complicity
alleged cover-up. Id. the time, Mr. Lidov was resident Massachusetts and was
unaware that Mr. Revell resided Texas. Id. Mr. Revell brought defamation suit
Texas against both Mr. Lidov and Columbia University. Id.
The district court dismissed the case for lack personal jurisdiction and Mr.
Revell appealed. Id. appeal, the Fifth Circuit looked precedent related the
passivity/interactivity websites and found that, while the Columbia University website
may, sense, constitute presence everywhere the world, the contacts with Texas
were not substantial. Id. 471. Therefore, there was basis for general jurisdiction.
The court then turned the issue specific jurisdiction and found that, while the
APPELLEES BRIEF
website was interactive some level, when considering the focus the article, any
contacts with Texas the defendants were simply insufficient satisfy the effects
test established the Supreme Court. Id. 471-73.
The Effects Test
Indeed, the effects test created the Supreme Court Calder, turns
the notion that defendant has knowledge the particular forum which potential
plaintiff will bear the brunt the harm coupled with the intentional direction the
defamatory material toward that forum. Calder
Jones, 465 783, 789 (1984).
Calder, not only did the defendants know that the plaintiff fact resided California;
they were also employees19 the publisher who enjoyed greater circulation
California than any other state; and they aimed the defamatory material California
audience. Id. 789-90. light these facts, the court determined that the defendants
conduct was calculated cause injury California. Id. 791. That is, the defendants
intentionally aimed their defamatory material particular forum which they
otherwise also had substantial presence.
Without question then, minimum, the effects test looks defendants
knowledge well his specific intent obtain the desired defamatory effect
particular forum. But, set forth above, the Texas Supreme Court has chosen afford
even greater constitutional protections for nonresidents and has found that, whether not Similarly, Abdel-Hafiz makes much the Paul Gillrie case where jurisdiction was found over corporation and
its employees who were responsible for publishing articles and mailing them Texas subscribers. Paul Gillrie
Institute, Inc. Universal Computer Consulting Ltd., 183 .W. 755 757-758 (Tex. App. Houston Dist.]
2005, pet.). But there evidence this case that Wright Vincent were ever employees any media outlet
responsible for publishing anything about Abdel-Hafiz. And neither Wright (CR 75-76) nor Vincent (CR 100-
exercised control over where any publications would released.
APP BRIE jury might have found the underlying articles Calder defamatory, and whether not the defamation was directed toward the forum, there was question that the
articles themselves also constituted substantial presence the forum states the
defendants. Michiana, 168 S.W. 789.
And where, here, there underlying presence and the defendant does not
know where the plaintiff resides, simply cannot said that the defamatory harm
was purposely directed that forum. Revell, 317 F.3d 475. One simply cannot
avail oneself some forum someplace. Id. Likewise, courts must also consider whether
the defendant acted pursuant some prearranged plan and whether contact with the
forum initiated for the very purpose committing the tort. Wilson
Belin, F.3d
644, 649 111 Cir. 1994). such, unsolicited questions20 from reporters the forum state are insufficient support specific jurisdiction defamation case. Id. other words, even when tort deemed have been committed particular forum, this alone simply not
dispositive whether jurisdiction appropriate. World- Wide Volkswagen, 444
288-89; see also, Michiana, 168 S.W. 789-90.
Abdel-Hafizs Actions
Recall that any contact with the forum must have resulted from the
defendants purposeful conduct, not the unilateral activity the plaintiff others. See
Michiana, 168 S.W. 789. this regard, one must look Abdel-Hafizs activities This rule applies with equal force Abdel-Hafizs allegations relating both the Dallas press conference and
the PBS story. both instances, Vincent was approached reporters who presented unsolicited questions about
Abdel-Hafiz (CR 02- 03).
APPELLEES BRIE they relate any alleged contacts with the Texas forum. undisputed that 1999,
when the recording Muslims first became issue, Abdel-Hafiz was assigned the
Dallas office the FBI.
Soon thereafter, Plaintiff was reassigned and transferred
Saudi Arabia. And was not until Plaintiff was suspended the FBI 2003 that
allegedly returned reside Texas. (RR 4/12/06 46-47; 65; 76; 101; 2149;
2163-72; 2190;).
Wright and Vincent cannot reasonably charged with the knowledge that
Plaintiff would suspended; removed from Saudi Arabia; fired the FBI; and
ultimately reinstated the Dallas office. Moreover, this Court were hold that
Plaintiffs unilateral decision move Texas after the fact allows for the assertion
jurisdiction over Wright and Vincent, the jurisdictional analysis would simply reduced the forbidden mechanical test.
minimum contacts.
Indeed, there would need ever consider
Instead, courts would simply look where plaintiff resides,
regardless when, and find that due process satisfied. This simply not the law.
Texas Without Jurisdiction clear that Abdel-Hafiz was not present Texas and did not have home
this State the time the March 2002 Washington, D.C. press conference, the
November 2002 Wall Street Journal pieces, the December 2002 ABC interview.
Plaintiff did not reside Texas these relevant times. And any event, also
clear that Abdel-Hafiz was never identified Wright Vincent during any these
events. Moreover, there were contacts between the PBS Frontline story and Texas
APPELLEES BRIEF
with the possible exception those manufactured Abdel-Hafiz himself. Indeed, the
Frontline story was about Plaintiff. gave the interview.
Vincent was merely
contacted the reporter follow-up. Neither Abdel-Hafizs residence nor his alleged
contacts with Texas was ever discussed Vincent.
Quite simply, Wright and Vincent are not chargeable with knowledge Abdel
Hafizs state residency any relevant time. Wright and Vincent have substantial
connections Texas with respect this matter. harm was ever aimed the State
Texas. Texas not uniquely tied the FBI. And even the alleged hann occurred
Texas, this alone not sufficient for the exercise jurisdiction over Wright and Vincent.
There simply nexus between Wrights and Vincents limited Texas contacts and
Abdel-Hafizs alleged injuries, any.
Neither Wright nor Vincent has had any
meaningful connections Texas that rise the constitutional level purposeful
availment.
Any connections that Abdel-Hafiz alleges were, best, merely fortuitous.
time did Wright Vincent seek any benefit, advantage, profit availing
themselves Texas forum. And there certainly evidence that any book deal
(RR 4/12/06 87) with Wright has any relationship this matter whatsoever its yet
another the many red herrings Abdel-Hafizs failed attempt bootstrap Texas
jurisdiction. The simple fact that, under these facts guided Texas law, Texas
without jurisdiction over Wright and Vincent. Moreover, the assumption jurisdiction
APPELLEES BRIEF
over Wright Vincent would offend traditional notions fair play and substantial
justice.
Fair Play and Substantial Justice mentioned above, the second prong the due process analysis requires that the
assumption jurisdiction the forum state not offend traditional notions fair play
and substantial justice. Burger King, 471 U.S. 472-474. And although the first prong
also includes fairness considerations, the jurisdictional analysis requires separate
determination whether the assertion personal jurisdiction complies with traditional
notions fair play and substantial justice. Guardian Royal, 815 S.W.2d 226-28.
That is, consideration must given the quality, nature, and extent the
activity the forum state, the relative convenience the parties, the benefits and
protection the laws the forum state afforded the respective parties, and the basic
equities the situation. Franklin Geotechnical Services, Inc. 819 S.W.2d 219, 221
(Tex. App. Fort Worth 1991, writ denied). this regard, courts consider the following factors: (1) the burden the
nonresident litigate distant forum; (2) the forum states interest adjudicating the
dispute; (3) the plaintiffs interest obtaining convenient and effective relief; (4) the
interstate judicial systems interest obtaining the most efficient resolution
controversies; and (5) the shared interest the several states furthering fundamental
substantive social policies. Guardian Royal, 815 S.W.2d 28.
APPELLEES BRIEF ge4
These considerations may sometimes also serve establish the reasonableness
jurisdiction upon lesser showing minimum contacts than would otherwise
required. Burger King, 471 U.S. 477. Conversely, considerations fair play and
substantial justice may affect the strength the minimum contacts that the court may
require. However, regardless these factors, must always established that the
nonresident defendant purposely established the requisite minimum contacts with the
forum state.
Guardian Royal, 815 S.W.2d 28.
And even the nonresident has
purposely established minimum contacts with the forum, the exercise jurisdiction may
not fair and reasonable under the facts any particular case. Burger King, 471 U.S. 477-78. The instant facts reveal that, all fairness, Wright and Vincent should
dismissed from this case.
Thus, the unlikely event that this Court were find that Wright Vincent have
some tangential contact with the State Texas, and that such contacts somehow rise
the level minimum contacts, the undue burden that would placed upon Wright
and Vincent litigate this distant forum would still require dismissal (CR 77; 103).
Moreover, Texas has particular interest adjudicating dispute that arises out
activity occurring wholly outside this State involving numerous nonresidents and
internal FBI matters.
And even Abdel-Hafiz now resides Texas, the relevant times did not.
Abdel-Hafizs interest obtaining efficient resolution this matter would also more
reasonably served another forum with more direct contacts the subject matter
APPELLEES BRI
this action, where the ABC Defendants also have presence equal that here Texas,
and where other material witnesses are more likely found. There simply
colorable connection this State that would justify haling Wright and Vincent into the
halls Texas Courthouse. The trial courts orders dismissal must affirmed.
PRAYER
For the reasons discussed herein, Robert Wright and John Vincent pray that this
Court affirm the trial courts dismissal all claims against them and sustain their
jurisdictional objections.
Respectfully submitted,
Todd Hutton
State Bar No. 24012880
10270 County Road 213
Forney, Texas 75126
Telephone (214) 797-0808
Facsimile (972) 552-9484
COUNSEL FOR APPELLEES
WRIGHT AND VINCENT
APPELLEES
RIEF ge43
CERTIFICATE SERVICE
The undersigned hereby certifies that this document has been forwarded the
day January, 2007.
following via CMRRR this the
Jeffrey Kaitcer
State Bar No. 11079750
Mike Windsor
State Bar No. 21760600
4200 Vickery Blvd.
Fort Worth, Texas 76185
Telephone (817) 377-0060
Facsimile (817) 377-1120
Charles Babcock
State Bar No. 01479500
Jackson Walker LLP
901 Main Street, 6000
Dallas, Texas 75202
Telephone (214) 953-6000
Facsimile (214) 953-5822
Todd Hutton
APPELLEES BRIEF e44
INDEX APPENDIX
Texas Rule Civil Procedure 120a. .... ...... ..... ... .Tab
TEX. APP. 38.1
APPELLEES BRIEF
Tab ge45
LEXSTAT TEX. CIV. 20A
TEXAS RULES
Copyright 2006
Matthew Bender Company, Inc. member the LexisNexis Group.
All rights reserved.
*** THIS DOCUMENT CURRENT THROUGH NOVEMBER 30, 2006 *** Annotations current through October 15, 2006
STATE RULES
TEXAS RULES CIVIL PROCEDURE
PART II. RULES PRACTICE DISTRICT AND COUNTY COURTS
SECTION Citation
Tex. Civ. 20a
(2006)
Rule 20a Special Appearance. Notwithstanding the provisions Rules and 23, special appearance may made any party either
person attorney for the purpose objecting the jurisdiction the court over the person property the
defendant the ground that such party property not amenable process issued the courts this State.
special appearance may made entire proceeding any severable claim involved therein. Such special
appearance shall made sworn motion filed prior motion transfer venue any other plea, pleading motion;
provided however, that motion transfer venue and any other plea, pleading, motion may contained the same
instrument filed subsequent thereto without waiver such special appearance; and may amended cure defects.
The issuance process for witnesses, the taking depositions, the serving requests for admissions, and the use
discovery processes, shall not constitute waiver such special appearance. Every appearance, prior judgment, not compliance with this rule general appearance. Any motion challenge the jurisdiction provided for herein shall heard and determined before motion
transfer venue any other plea pleading may heard. determination any issue fact connection with the
objection jurisdiction determination the merits the case any aspect thereof. The court shall determine the special appearance the basis the pleadings, any stipulations made and
between the parties, such affidavits and attachments may filed the parties, the results discovery processes,
and any oral testimony. The affidavits, any, shall served least seven days before the hearing, shall made
personal knowledge, shall set forth specific facts would admissible evidence, and shall show affirmatively that
the affiant competent testify.
Should appear from the affidavits party opposing the motion that cannot for reasons stated present
affidavit facts essential justify his opposition, the court may order continuance pennit affidavits obtained
depositions taken discovery had may make such other order just.
Should appear the satisfaction the court any time that any such affidavits are presented violation
Rule the court shall impose sanctions accordance with that rule. the court sustains the obj ection jurisdiction, appropriate order shall entered. the objection
Tex. Civ. 20a
jurisdiction overruled, the objecting party may thereafter appear generally for any purpose. Any such special
appearance such general appearance shall not deemed waiver the objection jurisdiction when the objecting
party subject matter not amenable process issued the courts this State.
NOTES:
LEGISLATIVE NOTE. Change amendment ective January 1976: Words are added the third sentence
which permit amendments the special appearance motion. LEGISLATIVE NOTE. Change amendment ective
Change amendment
ptember 1983: conform S.B 898, 68th Legislature, 983. LEGISLATIVE NOTE. ective
ptember 1990: provide for proof affidavit special appearance hearings, with safeguards
responding parties. These amendments preserve Texas prior practice place the burden proof the party contesting
jurisdiction.
LEXSTAT TEX. APP.
TEXAS RULES
Copyright 2006
Matthew Bender Company, Inc. member the LexisNexis Group.
All rights reserved.
*** THIS DOCUMENT CURRENT THROUGH NOVEMBER 30, 2006
*** Annotations current through October 2006
STATE RULES
TEXAS RULES APPELLATE PROCEDURE
SECTION TWO. Appeals from Trial Court Judgments and Orders
Tex. App. Rule (2006)
Rule Requisites Briefs. Appellants Brie --The appellants brief must, under appropriate headings and the order here indicated,
contain the following:
(a) Identity ofparties and counsel. --The brief must give complete list all parties the trial courts judgment order appealed from, and the names and addresses all trial and appellate counsel.
(b) Table contents. --The brief must have table contents with references the pages the brief. The
table contents must indicate the subject matter each issue point, group issues points.
(c) Index authorities. --The brief must have index authorities arranged alphabetically and indicating the
(d) Statement the case. --The brief must state concisely the nature the case (e.g., whether suit for
damages, note, involving murder prosecution), the course proceedings, and the trial courts disposition
the case. The statement should supported record references, should seldom exceed one-half page, and should not
discuss the facts.
(e) Issues presented. --The brief must state concisely all issues points presented for review. The statement issue point will treated covering every subsidiary question that fairly included.
(f) Statement acts. --The brief must state concisely and without argument the facts pertinent the issues
points presented. civil case, the court will accept true the facts stated unless another party contradicts them. The
statement must supported record references.
(g) Summary ofthe argument. --The brief must contain succinct, clear, and accurate statement the
arguments made the body the brief. This summary must not merely repeat the issues points presented for
review.
(h) Argument. --The brief must contain clear and concise argument for the contentions made, with appropriate
citations authorities and the record.
Tex.
App. Rule
(i) Prayer. --The brief must contain short conclusion that clearly states the nature the relief sought. Appendix civil cases.
(1)
Necessary contents. --Unless voluminous impracticable, the appendix must contain copy of:
(A) the trial courts judgment other appealable order from which relief sought;
(B) the jury charge and verdict, any, the trial courts findings fact and conclusions law, any; and
(C) the text any rule, regulation, ordinance,
statute, constitutional provision, other law (excluding case
law) which the argument based, and the text any contract other document that central the argument.
(2)
ptional contents. --The appendix may contain any other item pertinent the issues points presented
for review, including copies excerpts relevant court opinions, laws, documents which the suit was based,
pleadings, excerpts from the reporters record, and similar material. Items should not included the appendix
attempt avoid the page limits for the brief.